How Our CVAC Attorneys Help You Rally Against an Unfair C&P Exam Determination
Almost every Veteran who submits a disability benefits claim to the U.S. Department of Veterans Affairs (VA) will be asked to undergo a Compensation & Pension Examination (C&P). After testing, applicants often receive tentative notice about how their claim will proceed—whether they’ll receive benefits, or need to put in more work to obtain care. Some medical opinions can even lead to rejection, leaving Veterans vulnerable and with seemingly few options for recourse.
You don’t have to let an unfavorable C&P finding spell the end for your benefits claim. In the past, other Veterans have pushed back against unfair practices and unreasonable expectations, paving the way for applicants like you to assert their rights. Sean Kendall, Attorney at Law, and his team can help you pursue the care you need and the benefits you deserve. Read more to find out how certain precedents might affect your Court of Appeals for Veterans Claims (CAVC) claim, or contact us today to discuss your options after an unfavorable finding.
Role C&P Exams Play in Determining Your Disability Benefits
C&P tests are typically required very early in the claims process and are used to gather more information about a serviceperson’s condition. Although the results of a C&P examination can impact an application in many different ways, the VA typically refers to them when: 
- Establishing the severity of a disability for disability rating purposes.
- Confirming, or denying, that a disabling medical condition has a service connection.
After an exam is complete, the provider typically creates a report that includes a summary of findings, followed by a “medical opinion” that states whether they believe your disability was most likely caused by the time you spent in the U.S. military.
Understanding the Limitations of C&P Examinations
The VA puts a lot of faith in its providers, who are expected to author straightforward medical opinions—opinions that tell the agency whether the symptoms you feel are real, and if they were brought on or aggravated by the rigors of military life.
However, establishing a service connection can be just as difficult for medical providers as it is for Veterans. In some cases, even highly experienced doctors have to refer to speculative research when explaining their opinions. In others, they may cite the results of scientific research that has long since been refuted or challenged.
Problems also arise when authorized providers send their reports to the VA for review and approval. If, for example, the panel assigned to your case is anything less than thorough in reviewing all of the evidence that you’ve provided—including that from sources other than a C&P examination—your claim’s fate could be determined, at least in part, by a report that overlooks key details about your disability.
How Two Important Cases Could Affect Your Rights—And Give You A Second Chance
The VA is notorious for its strict policies and rigid bureaucracy. However, many servicemen and women have succeeded in doing what may sometimes seem impossible: convincing the VA that its rules are imperfect and that the results of a C&P exam must be reconsidered when they’re based more on fact than concrete science. At Sean Kendall Law, our team considers the following cases to provide grounds for a more comprehensive appeals process.
Nieves-Rodriguez v. Peake (2008)
Background
In Nieves-Rodriguez v. Peake, a Veteran was diagnosed with service-connected Guillain-Barre syndrome and claimed to have developed major depression as a complication.
Claim
The Veteran provided evidence of his secondary claim—major depression—which included verified opinions from two private physicians. One of the two doctors was the Veteran’s psychiatrist, who had treated him for more than five years. Both doctors agreed that the Veteran’s depression was related to his previously-diagnosed Guillain-Barre syndrome.
Problem
Although the Veteran’s doctors both agreed that the depression was caused by a service-related connection, a C&P examination—which included neurological evaluations—showed that the Veteran had “very little and mild residuals” from Guillain-Barre syndrome. This evidence was used to reject the Veteran’s claim of a secondary service connection for depression.
On appeal, the Board of Veterans’ Appeals again rejected the Veteran’s claim, saying that the two private physicians were never given access to the Veteran’s VA file and, therefore, could not provide an accurate medical opinion on the cause of his depression.
Outcome
CAVC found that the VA made a mistake when it dismissed the Veteran’s evidence. In its decision, the court suggested that the VA cannot give more weight to the results of a C&P examination, or the results of a finding that refers to the claimant’s VA file.
Instead, the VA must give more weight to medical opinions that are based on fact and sound reasoning—not just those that better reflect the agency’s preferred practices.
Stefl v. Nicholson (2007)
Background
In the case of Stefl v. Nicholson, a Vietnam War Veteran applied for disability benefits for nasal sinus disease. The Veteran said he likely developed his condition during deployment when he was exposed to potentially hazardous exposures of chemical agents and tobacco.
Claim
Alongside other evidence, the Veteran included a statement from his own doctor, which suggested the applicant’s symptoms were most likely triggered by toxins encountered in Vietnam.
However, when the Veteran first filed his claim, the VA didn’t recognize any presumptive potential service connection between herbicides, tobacco, and nasal sinus disease. It referred the Veteran to a VA-authorized provider for a C&P exam.
Problem
After the examination was complete, the provider backed up the VA’s initial finding—by simply noting that nasal sinus disease was not on the agency’s list of herbicide-related health conditions and, therefore, could not have a service connection.
Outcome
The case eventually escalated to a U.S. Circuit CAVC, which found that the C&P examination was inadequate because it didn’t discuss how—if at all—the Veteran’s disease could have been caused by herbicide exposure. The court instructed the VA to reconsider its opinion and ordered that it review the Veteran’s claim.
Summary of These CAVC Cases
The court’s ruling held that the VA must consider the possibility that, even if a condition isn’t currently categorized as a presumptive service-connected condition, it could have a direct cause worthy of further review. It also reasoned that a medical opinion that’s based on agency regulations—but not science—violates agency rules by forcing appeals boards to rely on their opinions and prejudices rather than scientific methods.
What These Cases Could Mean for Your Options for Appeal
In both cases, the VA weighed C&P findings more heavily. However, on appeal, the court instructed the VA to reconsider each claim and give more weight to findings grounded in fact, and provide well-reasoned explanations for how a provider formed their opinion.
Although neither case resulted in major changes to the department’s written policies, their effect is clear—C&P examiners must now describe how observations and data led them to a conclusion. In the absence of this description, the VA is forced to rely on its own opinions when making determinations about benefits, which is against the agency’s rules.
An unfavorable C&P exam can make it all the more difficult to obtain benefits for a service-connected disability. However, you don’t have to accept the results of a C&P test—especially if you have good reason to believe that your condition was caused by the time you spent serving your country.
Reasons to Challenge a C&P Exam
Every case is different, but the rules of many C&P exams can be cast into doubt if the examiner:
- Didn’t have the qualifications or the experience needed to diagnose, examine, or draw conclusions about your disability.
- Used outdated, speculative, or poor-quality research to make a determination about your service connection.
- Misinterpreted statements you made, or asked questions that no reasonable person would expect somebody without a high-level education in medical science to understand.
- Ignored favorable evidence, leaving you at a disadvantage.
How Sean Kendall, Attorney at Law, Can Help You File a Successful Appeal
Our team will challenge the reasoning employed in a C&P examiner’s medical opinion, or submit more compelling evidence to establish the severity of your disability or the existence of a service connection. This process often includes:
- Helping you work with a private physician or health care provider who has experience treating your specific condition.
- Giving you advice on the best ways to obtain well-written and compelling “buddy statements” from friends, family members, and colleagues—all of whom likely know you better than the C&P examiner—and whose testimony can be used to detail how your disability has affected the quality of your life.
- Writing a letter to the VA explaining the exact reasons why you think that your C&P findings need to be reconsidered.
Our legal professionals have spent years sticking up for Veterans’ rights, helping people just like you all around the nation. Even if the VA refuses to approve your benefits, we’ll assist you with filing an appeal, fighting until you receive the benefits that your sacrifice has earned.